As with other parts of this website, this page aims to provide helpful background and pointers but does not modify or replace any part of the Undertakings (including its appendixes).
Recognising the risk of repetition, the Undertakings are the document that defines the process for any Dispute (as defined in Appendix 2 of the Undertakings).
- The timetable for the steps in the Dispute process is defined in the Undertakings and, in some cases, the Adjudicator has limited discretion or flexibility.
- The Adjudicator recognises the challenge of the deadlines for all stakeholders but notes that the Undertakings define a process which aims to ensure the Adjudicator’s Decision is reached expeditiously and without unnecessary delays.
- There might be heightened difficulties in particular circumstances. For example, if a Notice of Adjudication were submitted on 22 December one year, there might be practical problems for the Adjudicator and the parties to a Dispute.
- Taking this and other issues into account, it would be helpful if any stakeholder preparing a Notice of Adjudication and accompanying documents would contact the Adjudicator to discuss the timetable they were contemplating for the submission of a Notice of Adjudication. Such a discussion would need to be conducted taking into account both confidentiality and the need to ensure it did not create a conflict of interest for the Adjudicator. The Adjudicator’s view is that it would focus on the timing of the potential Dispute as opposed to its nature and substance.
- As already noted, some deadlines in Appendix 2 are closely defined, but others give the Adjudicator some discretion. For example, the deadline for the submission of a Notice of Reply or the deadline for the Adjudicator’s decision (after the receipt of the Notice of Reply).
- This flexibility could, of itself, create practical issues. The Undertakings say that a stakeholder should take reasonable steps to engage in commercial negotiation to resolve a dispute bilaterally before resorting to the dispute process. The Adjudicator recognises that there could be a situation where parties might be concerned that a contract would reach its end date before the Adjudicator’s decision would be reached. The Adjudicator believes the Undertakings provide different routes to resolve this type of issues, which would be carefully considered in each particular circumstance.
- Finally, Paragraph 32 of Appendix 2 sets out some costs per hour for work by in-house commercial, technical and legal employees. As far as the Adjudicator is aware, these have not been updated since 2008. Cumulative increases in these types of costs in the years that have passed are probably in the region of 100%. The Adjudicator has considered reviewing and making variations to the costs (as provided for in the Undertakings). Stakeholders should be aware that, following the receipt of a Notice of Adjudication, Paragraph 32 is likely to be updated.
As noted at the start of this page, the process for any Dispute would be as defined in the Undertakings and content on this website does not modify or replace any part of the Undertakings. This section forms non-binding advice and information in relation to the performance of some of the functions of the Adjudicator.